Preventive seismic authorization: necessity for the criminal judge and for the administrative judge
So far nothing new. Moreover, also the other sentence of the criminal Court of Cassation, sec. III, March 5, 2025, n. 9920 reiterated the impossibility of issuing a building permit in amnesty for “properties built in elevation in the area at seismic risk“, For which”The requirement of double conformity is to be considered excluded in the event of buildings carried out – as in the case in question – in the absence of the estimate obtaining the seismic authorization (Section 3, n. 2357 of 14/12/2022, dep. 2023, Casà, Rv. 284058 – 01; Section 3, n. 29179 of 05/07/2023, prison; 14645 of 13/03/2024, Erbasecca). The principle also finds support in the most recent administrative jurisprudence, according to which The request for authorization for seismic purposes is always preventivenot being able to admit the institution of seismic authorization in amnesty (Cons. State, Section 6, n. 9355 of 2024)“.
In fact, the sentence of the Council of State, section IV, 20 November 2024, n. 9355, referred to by the criminal judges, says that The institution of seismic authorization in amnesty is not recognized in our system and that art. 94, DPRN 380/2001 pursues the purpose of performing one assiduous supervision of buildings regarding seismic riskconstituting an expression of a fundamental principle regarding the government of the territory; It follows, concludes the Council of State, that “the existence of an evident public interest linked topublic safetywith respect to which the building interest of the private individual can only be recessive, determines an absorption of the results relating to a building permit for the absence of a title certifying the seismic suitability of the property, having to also affect art. 36 of the DPRN 380 of 2001“.”
Public safety profiles in the assessment of simplified conformity
However, it is legitimate to ask whether these principles, placed to pay the primary public interest “public safety”, Can find some temperament in the different hypothesis ofart. 36-bis, single building text. As known, in fact, this procedure It starts from the request for the interested partyaccompanied by declaration of the technician on compliance with the urban planning legislation in force at the time of the application and the building legislation in force at the time of the construction of the intervention, as well as on the legitimacy of the building pre -existences pursuant to art. 9-bis, DPR 380/2001.
The municipal provision, which may also contain some prescriptions (such as the execution of certain interventions or the removal of works), provides for the payment of an oblation With two fixed parameters indicated in paragraph 5 and a possible parameter for intervention subject to landscape constraint indicated in paragraph 5-bis of art. 36-bis, single building text.
Well, the paragraph 3-bis of the same article admits the possibility of presenting arequest for assessment of simplified conformity “For properties located in the seismic areas referred to in Article 83, with the exception of those with low seismicity indicated by the decrees referred to in the same article 83“, Providing for applicability”as compatible“Of the provisions of theArticle 34-bis, paragraph 3-bis on the subject of construction tolerances.
Therefore, where these last quantitative and qualitative prerequisites, the substantial respect of the legislation on the authorization of the civil genius, of the filing of the project with the course of the term, with the further facilities provided for the interventions without relevance for public safety, therefore could allow the regularization of these interventions located in seismic areas.
A further (limited) hypothesis: art. 100, Consolidated Construction Text
Finally, a further possibility is represented by the procedure indicated in theart. 100, yours (formerly art. 25 of the LN 64 of 1974) according to which, where the crime is extinct, the Region can have the demolition sanction of the works carried out in violation of the anti -seismic legislation or order theexecution of changes suitable to make them compliant to the rules themselves.
From this last point of view, therefore, there is the sentence of the Tar Sicily, Catania, section I, 20 December 2024, n. 4182 in which it is stated that this procedure is substantially informed by thepublic interest in elimination – by demolition or conformation – of prejudices to public safety of works performed in contrast (or in different) with the anti -seismic discipline.
However, This public interest can converge with that of the private individual (which can take action for its establishment) to the extent that the latter manages to prove the substantial compliance of the building intervention carried out to the building regulation, thus avoiding the demolition also through its conformation (excluding, must be specified, in the specific case subject to the judgment of the TAR).
Conclusions
Ultimately, if the abusive construction is to respect:
- (i) the building legislation in force at the time of construction of the intervention (i.e., from time to time, also the provisions of the Ministerial Decree of 17 January 2018, of the Ministerial Decree of 14 January 2008, of the Ministerial Decree of 16 January 1996 and of the Ministerial Decree of 24 January 1986 etc.)
- (II) the urban planning legislation in force at the time of the presentation of the request for assessment of simplified conformity And
- (III) would fall within the discipline of construction tolerances,
the possibility of remedying this work could be admitted pursuant to art. 36-bis, DPR 380/2001.
We will see if the jurisprudence (criminal, primarily) will also take into account this possibility, reserving the right to realize it.
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